Breaking: Supreme Court strikes down part of Voting Rights Act

posted at 10:15 am on June 25, 2013 by Ed Morrissey

The Supreme Court may not have been ready to hand down its controversial decision on same-sex marriage today, but that doesn’t mean they avoided provoking a huge debate. In a 5-4 decision authored by Chief Justice John Roberts, the court struck down Section 4 of the Voting Rights Act as unconstitutional. So far, we have only a few tweets on this decision:

Sec 4 of the Voting Rights Act is unconstitutional. 5-4. Per CJ Roberts.

Here’s the decision. The relevant argument is that the VRA departs from the basic principle of state sovereignty before applying law, at least under the old model in Section 4 for pre-clearance. In order for the VRA to interfere with state sovereignty, Congress has to identify where racial discrimination in voting access is so endemic as to require that kind of intervention now, and not 50 years ago:

(3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision. Pp. 13–17.

The defense of those 50-year-old definitions did not impress the court:

(2) The Government attempts to defend the formula on grounds that it is “reverse-engineered”—Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the “formula . . . was relevant to the problem.” 383 U. S., at 329, 330. The Government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to “current political conditions,” Northwest Austin, supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the “current need[ ]” for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. Pp. 18–21.

In other words, the government couldn’t even make an argument that the endemic discrimination that required federal interference in state-level legislative processes still existed. They just argued that because the conditions existed 50 years ago, they might still be a problem today — an argument that lends itself to unlimited exercise. Small wonder the court found this irrational.

Note too that Section 4 impacts Section 5. The latter governs redistricting, which is another state-level legislative process that the Department of Justice can block in certain states using Section 4’s preclearance authority. Without Section 4, Section 5 loses its teeth as a process with no jurisdiction any longer.

The court left Congress an opening to provide a more rational formula for Section 4, but noted repeatedly that times have changed, and extraordinary intervention will be difficult to justify:

Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no
choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the
legislation it passes to remedy that problem speaks to current conditions.

At issue before the Supreme Court in the Alabama case is a key provision of the 1965 Voting Rights Act that requires jurisdictions (mostly in the South but not entirely) to get federal approval (either from the Justice Department or a panel of the D.C. Circuit Court) before it can change any voting procedure. That can be something as big as redistricting a state’s Congressional lines or a town moving a polling place to a different location. The idea behind the law was to keep elected officials in the Jim Crow South from implementing ruses to keep blacks from voting.

This preclearance procedure is contained in what’s called Section 5 of the act and it faced court challenges immediately when it was enacted. In 1965, the Warren Court upheld emergency provision and said that it had to be regularly renewed. The first period was for five years but Congress has extended the renewals. The 2006 renewal of the Section 5 was for 25 years and passed the House by almost 400 votes and the Senate by 98-0–a testament to the law’s enduring popularity and effectiveness.

But the formula for determining who gets covered–a combination of voting practices and patterns– hasn’t changed since the 1960s. It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — plus counties and municipalities in other states. Indeed, some states and cities have fallen under Section 5’s sway even though they weren’t legally segregated, including such as certain parts of New York City and towns in New Hampshire.

There’s reason to think the court is unlikely to allow those discrepancies to stand until 2031 when the act comes up for renewal. In 2009, the Supreme Court used the case of an obscure water utility district in Texas to express doubt about the viability of Section 5 preclearance procedure with Chief Justice John Roberts all but inviting Congress to limit its scope. “Things have changed in the South,” Roberts wrote. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels….The evil that (Section 5) is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” Roberts wrote in the majority 8-1opinion which suggests even a liberal justice might jump the fence. “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

Will Congress address the court decision with a renovated Section 4? Doubtful, even without Chuck Todd’s conclusion that it’s not “mature enough” to deal with voting rights at all. The problem left by this decision will be to find someplace in America where state law creates endemic racial and ethnic discrimination at a level that requires federal intervention in the state legislative process. Where might that be? The opinion includes this chart showing the difference between white and black voting registration in 1965 and 2004:

The only state where the difference is outside the margin of polling error is, surprisingly, Virginia, where the gap was lowest in 1965. (Look at the improvement in Mississippi, for instance, and ask why it’s still on the Section 4 list.) Rather than interfere with states’ legislative process before the fact (which is what the preclearance provision allows), the DoJ can address Virginia’s current statutes with the rest of the VRA now — without Sections 4 or 5. Congress could designate Virginia only in a revised Section 4, too, but that’s going to be a very tough sell.

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So if you pass all the voter ID laws you want and Democrats win national elections will you quite your complaining? Or will you move to requiring a property owners only test? Or a college graduate test?

libfreeordie on June 25, 2013 at 11:14 AM

Only tax payers should be allowed to vote including retirees who paid their taxes…

Thank you both for your quick and cogent responses. I’m an amateur legal scholar, and I’ve always been fascinated by the SCOTUS (I even read the entirety of “Marshall: Definer of a Nation,” which is slightly shorter than the Old Testament), but it’s always nice to get a deft summation from the professionals. :)

Good to hear that UT actually has to defend their system and we might finally see the end of purely race-based, discriminatory affirmative action.

“The problem left by this decision will be to find someplace in America where state law creates endemic racial and ethnic discrimination at a level that requires federal intervention in the state legislative process.”

What about all the illegal alien votes cancelling out my vote in California…?

Heh…diversity for everyone except the SCOTUS, right? How many law schools are currently represented by the 9 Justices….three?

Good Solid B-Plus on June 25, 2013 at 12:32 PM

You can add religion to that equation, as well. The Court has been comprised of Catholics and Jews for decades. I’m probably wrong (and I don’t want to look it up), but the last Protestant on the Court was probably Hugo Black, who was not exactly a peach. Former KKK member, who HATED Catholics. In fact, the reason that the ‘wall between church and state’ was adopted in the law was because Black hated the Catholic Church.

(No, Progs, Thomas Jefferson’s letter to the Danbury Baptists was not a law or in anyway legally binding. If you want to see some examples of how the Court looked at the issue of church and state before Black went on his tear in Everson v Board of Educationin 1947, go read Vidal v Girard’s Executors, 43 US 127 (1844), and Church of the Holy Trinity v United States, 143 U.S. 457 (1892)) and watch your hair curl…even if you’re bald.

So if you pass all the voter ID laws you want and Democrats win national elections will you quite your complaining? Or will you move to requiring a property owners only test? Or a college graduate test?

libfreeordie on June 25, 2013 at 11:14 AM

What a *crazy* statement, lib.

At this point……..Democrats wouldn’t win any elections if the laws were changed.

You can add religion to that equation, as well. The Court has been comprised of Catholics and Jews for decades. I’m probably wrong (and I don’t want to look it up), but the last Protestant on the Court was probably Hugo Black, who was not exactly a peach.

Section 5 required states to obtain preclearance approval for any change involving elections — any change, even moving a polling place 20 feet. Only 15 states were covered by Section 5, including hotbeds of Jim Crow like Michigan, New York, and Alaska.

Over the years, the Justice Department unit enforcing Section 5 has had hundreds of thousands of dollars in court sanctions imposed against it for abusing the Section 5 process. They even demanded that Alabama submit felon DNA testing to the Justice Department for approval, a law which had nothing to do with elections.

Now, Voter ID laws in Texas, Alabama, and Mississippi are in effect after a delay of years.

Have you thought this through? Because I’m thinking you haven’t thought this through…

JohnGalt23 on June 25, 2013 at 12:28 PM

I’ve thought about it quite a bit. I’ve posted about it before IIRC.

Merely filing tax documents =/= “paying taxes”.

If these folks get money “back” through EITC programs and the like and it’s more than what they paid over the course of a year, they are not paying taxes. Paying taxes means you have a tax liability.

I don’t want anyone to not have at least one vote, so let’s look at it in terms of a business (google A and B class shares if you need to). It’s silly to think that JohnGalt23 could own 25% of a billion dollar company while rogerb owns one share worth $25 and both of our votes count exactly the same towards determining the future of that company.

One vote per person, with more votes allowed for increased tax liability up to X maximum votes per taxpayer. I’d need more data to decide, but I’m leaning towards 10 for that number. It would probably need to be much, much higher considering the number of people in the US without tax liability or negative liability (they make money from taxes).

That said, if someone is willing to save up their cigarette, booze, cell phone, and airline receipts in order to demonstrate how any pleasure/frivolous taxes paid offset the total benefits they received from WIC, SNAP, EITC, etc., then more power to them. Maybe that could start another useful need-based discussion regarding their entitlements as well.

Only tax payers should be allowed to vote including retirees who paid their taxes…

mnjg on June 25, 2013 at 12:23 PM

So an E-1 Marine fighting in Afghanistan can’t vote?

Cuz he’s not likely to be paying much, if anything, in taxes.

See – you guys never think this through for unintended consequences.

What about a school teacher in a poor school district?

What about a farm worker? How about a bouncer in a bar? All low paying jobs and prolly will have all their taxes at the end of the year refunded.

So the only way peeps can become full citizens is to shun the low paying jobs all over the country and go for something that will result in them paying taxes. Wow – that’s a formula for real economic success!!! Everyone turning down minimum wage jobs! Who’ll do them?

Thanks. I said that I was probably wrong. lol Nevertheless, for the last half century, at least, most justices have either been Catholics or Jews and attended Harvard or Yale (with the occasional bone thrown to Stanford).

I don’t think religion has the impact that the Left claims. It hates and fights Catholic nominees because they think that those justices are automatic votes against abortion, contraception, homosexuality, etc. It’s not true, as evidenced by Sotomayor and Kennedy, for two. The effect of Harvard/Yale is much more profound. The echo chamber and disconnect with average Americans are great.

I realize I phrased that poorly. Yes, I care who wins elections generally. I don’t favor asking for identification because it will help a party; I care because only citizens should be voting in our elections and a lot of noncitizens are voting.

Can they also declare it unconstitutional to go out and round up as many low info and disinterested voters as possible and take them to the polls? I don’t want someone who isn’t informed, who probably can’t name the Speaker of the House or even the VP, to vote, period. If you can’t be bothered to pay attention and be invested in the decisions made for you, and get to the polls yourself (the sick and infirm excluded, natch), then you don’t belong in a voting booth.

So if you pass all the voter ID laws you want and Democrats win national elections will you quite your complaining? Or will you move to requiring a property owners only test? Or a college graduate test?

libfreeordie on June 25, 2013 at 11:14 AM

What a *crazy* statement, lib.

At this point……..Democrats wouldn’t win any elections if the laws were changedFOLLOWED.

So Eric Holder’s incompetence and stupidity for once has helped us? Funny how that works out.

slickwillie2001 on June 25, 2013 at 12:51 PM

Oh, I think his incompetence is helping us out a lot in the long term. We won’t see immediate results, but there is a whole generation of children growing up right now that will link Democrats and the nightmare Holder has created on various fronts as corrupt government.

Those children will grow up and view Democrats just as badly as they do Republicans. It helps even the future out for us.

On his Twitter account Tuesday, state Rep. Ryan Winkler called the justices’ 5-4 ruling striking down a part of the law racist, and the work of “four accomplices to race discrimination and one Uncle Thomas.” Justice Thomas, who is black, was one of the five justices in the majority.

Yet another example of why your Democrat Party lost the college graduate vote in 2012.

Obama won 100% of the vote in 59 Philly precincts and 9 Cleveland precincts, but, obviously, no one there thinks that they need Section 5 of the VRA because of racial discrimination.

Those are just two examples.

Resist We Much on June 25, 2013 at 12:24 PM

A point I haven’t seen raised since these facts escaped the plantation….

The people running these precincts did this vote fraud so blatantly that it couldn’t be missed. There is no way Romney didn’t get a single vote in those 59 precincts, and we all know it. But announce this finding to any….ANY….leftist and you’ll get a big fat ho hum.

They know it. They agree it’s happenning. But as long as it benefits democrats, they don’t care. Every instance of voter fraud in this country is being perpetrated by leftists, they’re doing it right out where everyone can see it, and they know for a fact they will never face consequences for it.

These examples were so blatant, I would further submit that they did it knowing it would be reported, and wanting that very thing. And nothing will be done about it. They are essentially daring us to complain, knowing it will do us no good whatsoever.

My evidence? Is anyone even bothering to investigate this? Of course not. That would be racist, ya see.

Many of my tolerant Democrat friends today have been proudly posting a Photoshopped picture of the SCOTUS Justices on their Facebook pages. The five Justices-including Clarence Thomas-are wearing KKK Hoods.

Well said. It is about darned time the we cleaned up the hundreds of anachronistic civil rights laws on our books. They served their purpose. They’re no longer needed and in fact they exist now only to preserve punitive measures on innocents. The racial grievance industrial complex has long outlived any usefulness it had.